Citation Nr: 1035467	
Decision Date: 09/20/10    Archive Date: 09/28/10

DOCKET NO.  10-11 310	)	DATE
	)
	)

THE ISSUE

Whether a September 14, 2007, decision of the Board of Veterans' 
Appeals (Board), which, in pertinent part, denied entitlement to 
a rating in excess of 20 percent for pulmonary tuberculosis from 
September 6, 1978, through January 25, 1982, should be reversed 
on the basis of clear and unmistakable error (CUE).



REPRESENTATION

Moving party represented by:  Disabled American Veterans



ATTORNEY FOR THE BOARD

M. C. Graham, Counsel





INTRODUCTION

The moving party is a veteran who had active service from January 
1, 1945, to May 13, 1946, and from May 17, 1946, to March 17, 
1949.  A September 14, 2007, Board decision, in pertinent part, 
denied a rating in excess of 20 percent for pulmonary 
tuberculosis from September 6, 1978, through January 25, 1982.  
The moving party appealed that determination to the United States 
Court of Appeals for Veterans Claims (Court).  In April 2009, the 
Court dismissed the moving party's appeal.  The instant claim of 
CUE in the September 2007 Board decision was filed in February 
2010.

Please note this motion has been advanced on the Board's 
docket.


FINDINGS OF FACT

1. A September 14, 2007 Board decision, in pertinent part, denied 
a rating in excess of 20 percent for pulmonary tuberculosis (PTB) 
from September 6, 1978, through January 25, 1982.

2.  The record does not establish that any of the correct facts, 
as they were known at the time, were not before the Board on 
September 14, 2007, or that the Board incorrectly applied 
statutory or regulatory provisions extant at that time such that 
the outcome would have been manifestly different but for the 
error.


CONCLUSION OF LAW

There was no CUE in the September 14, 2007, Board decision's 
denial of a rating in excess of 20 percent for PTBG from 
September 6, 1978, through January 25, 1982.  38 U.S.C.A. § 7111; 
38 C.F.R. §§ 20.1400, 20.1403.



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 
2002), and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), amended VA's duties to notify and to assist a claimant 
in developing information and evidence necessary to substantiate 
a claim.  However, the provisions of the VCAA do not apply to 
motions seeking revision of a Board decision based on CUE.  
Livesay v. Principi, 15 Vet. App. 165 (en banc) (2001).

II.  CUE

A final decision by the Board is subject to revision on the 
grounds of clear and unmistakable error.  If evidence establishes 
such error, the prior Board decision shall be reversed or 
revised.  See 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400.

A motion to review a prior final Board decision on the basis of 
CUE must set forth clearly and specifically the alleged clear and 
unmistakable error, or errors, of fact or law in the Board 
decision, the legal or factual basis for such allegations, and 
why the result would have been manifestly different but for the 
alleged error.  Non-specific allegations of failure to follow 
regulations or failure to give due process, or any other general, 
non-specific allegations of error, are insufficient to satisfy 
this requirement.  Motions that fail to comply with these 
requirements shall be dismissed without prejudice to refiling.  
See 38 C.F.R. § 20. 1404(b); see also Simmons v. Principi, 17 
Vet. App. 104 (2003).

CUE is a very specific and rare kind of error.  It is the kind of 
error, of fact or of law, that when called to the attention of 
later reviewers compels the conclusion, to which reasonable minds 
could not differ, that the result would have been manifestly 
different but for the error.  Generally, either the correct 
facts, as they were known at the time, were not before the Board, 
or the statutory and regulatory provisions extant at the time 
were incorrectly applied.  See 38 C.F.R. § 20.1403(a); see also 
Damrel v. Brown, 6 Vet. App. 242 (1994), citing Russell v. 
Principi, 3 Vet. App. 310 (1992).

Examples of situations that are not CUE include: (1) a new 
medical diagnosis that "corrects" an earlier diagnosis 
considered in a Board decision; (2) a failure to fulfill VA's 
duty to assist the veteran with the development of facts relevant 
to his claim; or (3) a disagreement as to how the facts were 
weighed or evaluated.  38 C.F.R. § 20.1403(d).  CUE also does not 
encompass the otherwise correct application of a statute or 
regulation where, subsequent to the Board decision challenged, 
there has been a change in the interpretation of the statute or 
regulation.  38 C.F.R. § 20.1403(e).

To warrant revision of a Board decision on the grounds of CUE, 
there must have been an error in the Board 's adjudication of the 
appeal that, had it not been made, would have manifestly changed 
the outcome.  If it is not absolutely clear that a different 
result would have ensued, the error complained of cannot be clear 
and unmistakable.  See 38 C.F.R. § 20.1403(b) and (c); see also 
Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999).

III.  Laws and Regulations in Effect at the Time of the September 
14, 2007, Board Decision

Disability evaluations are determined by the application of the 
Schedule For Rating Disabilities, which assigns ratings based on 
the average impairment of earning capacity resulting from a 
service-connected disability.  38 U.S.C.A. § 1155;           38 
C.F.R. Part 4.  Where there is a question as to which of two 
evaluations shall be applied, the higher evaluation will be 
assigned if the disability picture more nearly approximates the 
criteria required for that rating.  Otherwise, the lower rating 
will be assigned.  38 C.F.R. § 4.7.  In order to evaluate the 
level of disability and any changes in condition, it is necessary 
to consider the complete medical history of the veteran's 
condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

In the past, the rating schedule provided that tuberculosis, 
including PTB, was to be rated on the basis of graduated ratings, 
upon reaching inactivity, after a period of activity.  However, 
Public Law 90-493 repealed section 356 of Title 38, United States 
Code, which had provided the graduated ratings for inactive 
tuberculosis.  The repealed section still applies to the case of 
any veteran who on August 19, 1968, was entitled to receive 
compensation for tuberculosis.  See 38 C.F.R. § 4.96.  In the 
instant case, because the Veteran was awarded compensation for 
PTB before August 19, 1968, the repealed section 356 of Title 38, 
United States Code, providing for graduated ratings is 
applicable.

Under the protective criteria for rating PTB where entitlement to 
compensation was established on August 19, 1968, the general 
rating formula provides for a 100 percent rating for 
tuberculosis, pulmonary, chronic, far advanced, active 
(Diagnostic Code (Code) 6701); a 100 percent rating for 
tuberculosis, pulmonary, chronic, moderately advanced, active 
(Code 6702); a 100 percent rating for tuberculosis, pulmonary, 
chronic, minimal, active (Code 6703); and, a 100 percent rating 
for tuberculosis, pulmonary, chronic, active, advancement 
unspecified.  Under Code 6724, a 100 percent rating is warranted 
for inactive pulmonary tuberculosis for two years after the date 
of inactivity, following active pulmonary tuberculosis.  
Thereafter, for four years, or in any event to six years after 
date of inactivity, a 50 percent rating is assigned.  Thereafter, 
for five years, or to eleven years after date of inactivity, a 30 
percent rating is assigned.  Following far advanced lesions 
diagnosed at any time while the disease process was active, a 
minimum 30 percent rating is assigned.  Following moderately 
advanced lesions provided there is continued disability, 
emphysema, dyspnea on exertion, impairment of health, etc., a 20 
percent rating is assigned; otherwise, a 0 percent rating is 
assigned.  Notes following the general rating formula specify 
that the graduated 50 percent and 30 percent ratings and the 
permanent 30 percent and 20 percent ratings for inactive 
pulmonary tuberculosis are not to be combined with ratings for 
other respiratory disabilities.  38 C.F.R. § 4.97, Code 6724.

Thus under the above rating scheme, a veteran granted service 
connection for PTB was compensated for eleven years after the 
disease was arrested-a period during which he or she may have had 
no disability attributable to PTB.  Following the eleven-year 
rating period while the disease was inactive, the 30 percent 
evaluation was continued if far-advanced lesions had developed 
while the disease was active.  Following moderately advanced 
lesions, a 20 percent evaluation was assigned if there was actual 
residual disability.  Otherwise, a noncompensable (0 percent) 
evaluation was assigned.

IV.  Factual Background

Service medical records show that routine X-rays of the Veteran's 
chest during a 1948 hospitalization revealed lesions of active 
tuberculosis.  Specific X-ray findings included an accentuation 
of markings in the right suprahilar region with oval areas of 
increased density (soft tissue density) in the fourth right 
interspace posteriorly, in the right medastinal region.  The 
largest of these measured 5 millimeters in diameter and there 
were approximately 6 in number.

A routine military follow-up chest X-ray in February 1954 was 
unremarkable, with normal heart and vascular shadows and clear 
lung fields.

In September 1958, the veteran underwent a chest X-ray at a 
military hospital which revealed definite infiltration process 
beneath the apex and the right 1rst anterior interspace.  This 
was noted to be minimal in extent, and not present in 1954.  It 
is noted that apparently the Veteran had an active upper lobe 
lesion.

A March 1959 military X-ray report indicates that inasmuch as 
there had been no change in the appearance of the Veteran's chest 
in six months the Veteran could be safely dropped from follow up 
as the findings apparently were indicative of obsolete disease. 

A routine military follow-up chest X-ray in May 1960 was 
unremarkable, with normal heart and vascular shadows and clear 
lung fields.

An X-ray military reexamination of the Veteran's chest in 
February 1962, when compared with the previous study, showed a 
suggestion of an increase in the infiltration in the right upper 
lung field.  It was advised that the Veteran be presented to the 
tuberculosis Board for final evaluation.

An April 1962 Medical Certification from Mariano D. Bayani, M.D., 
stated that he had been treating the Veteran since 1949 for 
pulmonary tuberculosis and that the condition flared up from time 
to time.  He said he treated the Veteran on five separate 
occasions from 1949 to 1957 for bouts of bronchitis, influenza of 
the respiratory type or severe colds.  He said in August 1958 the 
Veteran presented with signs and symptoms of PTB particularly in 
the right apex which he considered a reactivation and flaring up 
of an old tuberculosis lesion in the area.  Dr. Bayani indicated 
that proper medical advice and medication was instituted with 
little improvement noted on visits in September 1958, October 
1958, November 1958 and January 1959.  He added that in January 
1959 the Veteran complained of an unproductive cough.  
Substantive improvement was noted during a February 1959 visit, 
but auscultatory findings remained unsatisfactory.  In March 
1959, the Veteran presented with complaints of poor appetite, 
insomnia, productive cough and chest pains over the right upper 
chest.  As of the date of Dr. Bayani's letter, in 1962, the 
Veteran was coming in regularly on a monthly basis for treatment 
of his chronic PTB.

A June 1965 VA examination report reflects a diagnosis of 
tuberculosis, pulmonary, chronic, activity undetermined.

A November 1966 VA X-ray report revealed now "more fibronodular 
densities from the apex to the 2nd ant. I.S.  Exudative densities 
at the 1st ant I.S. and 2nd ant rib level."

A May 1967 chest X-ray report notes soft nodular densities in the 
right upper lobe extending to the right 2nd anterior interspace.  
There appeared to be a left apical capping.  The 'CP' angles were 
normal.  The rest of the lung fields were also free of 
infiltrates.  The conclusion was right upper lobe densities 
suggest active PTB.

VA hospital records show that the Veteran was treated from July 
3, 1967, to September 5, 1967, for pulmonary tuberculosis, 
minimal, question of activity.  VA hospital medical 
certifications dated in August and September 1967 reflect 
diagnoses of PTB, moderately advanced, bilateral, active, IV.  
According to the hospital narrative summary, chest x-ray of the 
right lung on admission in July 1967 showed fibronodular lesions 
extending from the apex to the 2nd anterior I.S.  The admission 
film compared to "OPD" film in October 1966 showed regression 
of lesions at the right upper lung.  There was remarkable 
clearing of the fibro-exudative densities from the apex to the 
2nd anterior "I.S." seen in October 1966 film.  Follow-up film 
in September 1967 compared with film in July 1967 showed stable 
lesions.  Tomogram of the right upper lung in September 1967 
revealed no definite evidence of cavity formation.  In September 
1967 it was determined that the Veteran had received maximum 
hospital benefit.

A May 1968 VA hospital discharge summary regarding another 
disability notes that the Veteran had been confined at that 
hospital in 1967 for PTB, minimal, arrested, activity 
undetermined.

A medical examination report dated in November 1968 states that 
the Veteran had been hospitalized in 1967 for PTB and was still 
suffering from active tuberculosis as per the latest X-ray 
findings taken by VA in May 1968.

A private chest X-ray report in February 1972 shows that the 
Veteran's cardiac shadow was not enlarged and there were 
fibronodular densities from the right apex to the 2nd axis.  
Diaphragms were normal.  The remark was PTB, "MA" (moderately 
advanced).

VA medical certifications and x-ray reports dated in 1982, 1983, 
1986, 1987 and 1990, reflect findings of PTB, minimal.

Specifically, a January 26, 1982, x-ray report reflects an 
impression of PTB, minimal, activity undetermined.  An April 1983 
private certification reflects a diagnosis of PTB, minimal.

X-ray reports dated in January 1993 and October 1994 show PTB, 
infiltrates, moderately extensive, activity not precluded; an 
October 1994 VA certification shows PTB, chronic, reinfectious 
type, moderately advanced, right upper lung, activity not 
precluded.

A March 1995 VA examination and X-ray report reflects a diagnosis 
of PTB, right upper lung, chronic, activity undetermined.

A May 1995 Tuberculosis Board Review report reflects a diagnosis 
of PTB, right upper lung, chronic, activity undetermined, Stage 
V.

In May 1995, the RO granted service connection for PTB, rated 0 
percent, effective February 8, 1995.  The effective date of the 
grant was subsequently changed to April 17, 1962.

A July 1995 VA chest x-ray report shows minimal to moderately 
advanced infiltrates.

During an October 1995 VA examination, the Veteran complained of 
a chronic cough, yellowish phlegm and a low grade fever.  He was 
diagnosed as having pulmonary tuberculosis, minimal, inactive.  
X-rays revealed minimal PTB with mild chronic perihilar 
bronchitis, stable from January 1993.

A December 1995 Tuberculosis Board Review report reflects a 
diagnosis of pulmonary tuberculosis, chronic, stable, inactive, 
Stage IV.

Minimal pulmonary tuberculosis, inactive, was primarily shown on 
x-ray reports from 1995 to 1998.  A June 1996 private x-ray 
report shows moderately extensive pulmonary tuberculosis 
infiltrates, probably inactive.

An October 1996 Tuberculosis Board Review report reflects a 
diagnosis of pulmonary tuberculosis, inactive, Stage IV.

An August 1997 VA x-ray report contains an impression of minimal 
infiltrate, right upper lung, with chronic bronchitic changes, 
stable from November 1986 to May 1997.

A private x-ray report dated in September 1997 shows PTB 
infiltrates, bilateral, unchanged and stable.
An April 1998 VA examination report shows that the Veteran's PTB 
was not active at the time, and that he had minimal structural 
damage to his lungs.  The report states that the Veteran last 
underwent pulmonary function testing in September 1997 with 
normal results.  The examiner noted that a VA outpatient clinic 
determined that the Veteran's PTB was inactive from 1986 to 
"present," and stated that the level of activity from 1967 to 
1986 was uncertain.  An April 1998 VA X-ray report notes minimal 
infiltrates, right upper lung, with chronic bronchitic changes, 
unchanged since September 1997.

A July 1998 Tuberculosis Board Review report reflects a diagnosis 
of PTB, minimal, right upper lung, chronic, stable, inactive, 
Stage IV.

During a July 1999 VA examination the Veteran complained of a 
cough, scanty phlegm, weight loss and slight shortness of breath; 
he was not taking medication at that time.  The diagnosis was 
PTB, right upper lung, MOTT (mycrobacteria other than 
tuberculosis), active, class III.

Pulmonary function testing by VA in July 1999 revealed normal 
findings.  Such findings included FVC readings of 107.74%, 
109.24% and 87.90% of predicted value, FEV1/FVC readings of 
114.41%, 110.18% and 110.68% of predicted value.

A July 1999 VA chest x-ray report contains an impression of 
minimal infiltrate, right upper lung, stable from September 23, 
1997 and April 13, 1998; chronic bronchitic changes.  An October 
1999 Tuberculosis Board Review report reflects a diagnosis of 
PTB, MOTT, right upper lung, active, Class III.

In August 2000, the Veteran testified before a Hearing Officer at 
the RO regarding his request for a compensable rating for PTB for 
the period from September 6, 1978, through October 4, 1999.  He 
said that his PTB was active at times during the period.

In April 2007, a VA medical opinion was proffered as to whether 
the Veteran's PTB was active at any time for the period in 
question.  The examiner specifically referenced a June 1995 
private medical certificate which reflected a diagnosis of "PTB, 
chronic, reinfectious type, moderately advanced, RUL, activity 
not precluded," noting that the private examiner had reviewed X-
rays from 1990, 1993, and 1994.  The VA examiner noted that the 
treating physician apparently believed that the Veteran was re-
infected and instituted drug therapy.  The VA examiner opined 
that this evidence suggests that it is at least likely as not 
that the Veteran's PTB was "active" during the above mentioned 
period.  The examiner opined that there was no evidence presented 
that there were "far advanced" lesions during the above 
mentioned period.

In June 2007, VA requested clarification from the VA examiner 
regarding the exact periods the examiner found the Veteran's PTB 
to have been "active."

In a July 2007 clarifying opinion, the VA examiner stated that 
"[a]fter again reviewing the records, my opinion is that it is 
at least likely as not that the veteran's pulmonary tuberculosis 
was 'active' at any time(s) during the period from September 6, 
1978 thru October 4, 1999."  The examiner noted that on and off 
during this period, the Veteran had symptoms of cough, fever, and 
malaise.  The examiner acknowledged the following records: an 
October 14, 1983, record reflected streptomycin injections which 
were prescribed for 6 months for presumed re-activated 
tuberculosis; a June 15, 1995, record reflected isoniazid, 
rifampin, pyrazinamide, ethambutol prescribed for presumed re-
activated tuberculosis; and, a February 1996, record reflected 
isoniazid and ethambutol prescribed for presumed re-activated 
tuberculosis.  The VA examiner noted:

During this time period, multiple chest x-ray reports 
suggested upper lobe infiltrates, mostly on the right.  The 
reports are from different facilities and different 
readers. Generally, they are not compared to prior films. T 
he films that were compared suggest chronic disease without 
significant advancement and activity could not be 
determined.  No x-ray evidence of cavitary lesions was 
documented.  There was no evidence of "far advanced" 
disease documented.  There was no evidence of moderately 
advanced disease documented.

The VA examiner noted that there were no positive cultures for 
tuberculosis found on review, but did note a positive culture for 
mycobacterium other than tuberculosis on September 2, 1999.  The 
examiner noted that during "this period" several physicians 
considered the Veteran's history and symptoms and prescribed 
medication consistent with treatment of minimal tuberculosis.  
But no culture documentation was noted.  The examiner explained 
that the lack of positive cultures or advancing changes in chest 
X-ray does not preclude the diagnosis of minimal tuberculosis.  
Patients can have endobronchial tuberculosis without X-ray 
changes.  The examiner could not definitively say that the 
Veteran was infected with minimal tuberculosis during those 
occasions, or at any other time.  But the examiner could not say 
that he was not "actively" infected during those treatment 
times.  The examiner felt it reasonable to err on the side of the 
treating physicians and say that it is at least as likely as not 
that he was actively infected.  The Board's review of the VA 
examiner's opinions (together) found a conclusion, rationale, and 
supporting citation to medical records on file, that the 
veteran's tuberculosis was active effective October 14, 1983, 
through October 4, 1999.  Specifically, the examiner referred to 
an October 14, 1983, record reflecting streptomycin injections 
which were prescribed for 6 months for presumed re-activated 
tuberculosis, and also referred to records dated in 1995 and 
1996.  

In the September 2007 decision, the Board evaluated the Veteran's 
PTB under the graduated rating scheduled, as the Veteran was 
entitled to compensation for PTB on August 19, 1968.  Prior to 
the 2007 Board decision, the Veteran's PTB was assigned the 
following evaluations: 100 percent effective April 17, 1962; 50 
percent effective September 6, 1969; 30 percent effective 
September 6, 1973; 20 percent from September 6, 1978, to October 
4, 1999; and, 100 percent effective October 5, 1999.  The only 
issue in appellate status was entitlement to a disability rating 
in excess of 20 percent for the period September 6, 1978, through 
October 4, 1999.  

Based on the VA examiner's opinion of record and resolving all 
doubt in the Veteran's favor, the Board granted a 100 percent 
disability rating, effective October 14, 1983.  The Board denied 
a rating in excess of 20 percent for the period September 6, 
1978, through January 25, 1982, as neither the April 2007 opinion 
nor the July 2007 supplemental opinion identified any medical 
records dated from September 6, 1978, through January 25, 1982, 
which reflected that the Veteran's PTB was active.  The Board 
noted that the VA examiner opined that it was at least as likely 
as not that the Veteran's PTB was "active" at "any time" 
during the periods in question, but further noted that there were 
no medical records on file with regard to his PTB from September 
1978, through January 25, 1982.  Prior to September 1978, the 
most recent medical report was dated in February 1972, and 
reflected that the Veteran's PTB was moderately advanced, but did 
not indicate whether the Veteran's PTB was active or inactive.  
Prior to this, a September 1967 medical report reflects that the 
Veteran's PTB was active; however, approximately nine months 
later in May 1968, the activity was undetermined.  The Board 
found that subsequent to September 1967, the medical evidence of 
record did not reflect sufficient medical evidence with regard to 
any active tuberculosis.  In light of the objective evidence 
being completely devoid of any indication of active tuberculosis 
subsequent to September 1967, and prior to January 26, 1982, the 
Board found that a rating in excess of 20 percent for PTB was not 
warranted from September 6, 1978, through January 25, 1982.

V.  Analysis

The Board has carefully reviewed the arguments by the moving 
party in the February 2010 CUE Motion as to why he believes the 
September 14, 2007, Board decision contained CUE.  The moving 
party argues that both government and private chest specialists 
were unanimous in their opinions that his PTB was never inactive 
or arrested.  He emphasizes that his tuberculosis "reactivates 
every now and then" and gives an example of VA treatment in 
October 1983 which included anti-TB injections for six months.  
[The Board notes that these arguments appear to be somewhat 
contradictory, as arguing that the PTB reactivates suggests 
preceding inactivity.]  He also points to a February 1972 VA X-
ray report which showed fibronodular densities and remarked 
"PTB, MA" (moderately advanced).

A review of the September 2007 Board decision reveals that the 
Board conducted a historical review of the Veteran's PTB (see 
Schafrath, 1 Vet. App. at 594 (1991), and considered the evidence 
cited by the moving party.  However, neither the February 1972 
record nor the October 1983 records relied upon by the moving 
party were created during the time period in question, between 
September 6, 1978, and January 25, 1982.  In weighing the 
evidence in 2007, the Board noted that "[t]here are no medical 
records on file with regard to his pulmonary tuberculosis from 
September 1978, through January 25, 1982" and that "subsequent 
to September 1967, the medical evidence of record does not 
reflect sufficient medical evidence with regard to any active 
tuberculosis."  The moving party's disagreement with how the 
Board weighed such facts is insufficient to demonstrate CUE in 
the August 2004 decision.  Mere disagreement with the Board's 
evidentiary conclusions is not CUE.  See 38 C.F.R. 
§ 20.1403(d)(3).  

For the reasons and bases expressed above, the Board finds that 
the September 14, 2007, Board decision does not contain CUE.  
Accordingly, the motion alleging CUE must be denied.


ORDER

The motion for revision of the September 14, 2007, Board decision 
denying a rating in excess of 20 percent for PTB from September 
6, 1978, through January 25, 1982, on the grounds of CUE in that 
decision is denied.


                       
____________________________________________
	GEORGE R. SENYK
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs